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Flashback: FBI Attorney Called For Codifying Miranda Public Exception In 2002.

Over the weekend, Attorney General Eric Holder said he thought that Congress should clarify the public-safety exception to the Miranda rule, which allows arresting officers to delay reading suspects their Miranda rights in the event that there are lives immediately in danger. Holder, and the Obama administration have come under fire from Republicans for reading terror suspects their Miranda rights, although the administration maintains that in the two recent cases -- that of underwear bomber Umar Abdulmutallab and alleged Times Square bomber Faisal Shahzad -- the public exception was invoked and both suspects were questioned for a time before being read their rights. As I noted
on Friday, the government seems to be operating on a de-facto use of
the public exception in terrorism cases.

The call to codify the public-safety exception with a new statue, however, goes back as far as May 2002. Then FBI Special Agent and Minneapolis Chief Division Counsel Colleen Rowleywrote a memo to FBI Director Robert Muller in the aftermath of 9/11, saying that "we need more guidance on when we can apply the Quarles 'public safety' exception to Miranda's 5th Amendment requirements." In the days immediately following 9/11, Rowley wrote, the Minnesota office of the FBI was prevented from questioning Zacharias Moussaoui, who was later tried and convicted for his involvement in the 9/11 attacks, under the public-safety exception.

On June 2002, after attempting to get legislators to insert such a statute in the PATRIOT Act, Rowley testified before the Senate Judiciary Committee calling for clarification of the Miranda public-safety exception:

With the focus now on preventing acts of terrorism, the law in this area needs to be clarified. It may be possible to enact legislation amending 18 U.S.C. 3501 on the admissibility of confessions by at least providing a defense from civil liability for federal agents who must, under these type of situations, violate the Miranda rule in good faith, in order to protect public safety.

Over the next six years that Republicans controlled Congress and the White House, nothing was done. Since the Obama administration took office, Miranda has suddenly become one of the defining issues for Republicans on national security.

“It’s frustrating to look back over the past eight and a half years to have seen this ignored,” Rowley said in an interview, adding that she thought the issue "was disregarded because of this notion of having to 'take off the gloves' and 'go to the dark side.'”

Civil libertarians have balked at Holder's suggestion, arguing that Miranda doesn't need to be modified, and the current use of the public exception is adequate. The Obama administration has previously held that reading suspects their Miranda rights does not interfere with intelligence collection.
-- A. Serwer

About the Author

Adam Serwer is a writing fellow at The American Prospect and a graduate of the Columbia University Graduate School of Journalism. He also blogs at Jack and Jill Politics and has written for The Village Voice, The Washington Post, The Root, and the Daily News. Follow @adamserwer